Building an International Administrative Law of Expertise:

Law and Science in the International Regulation of Trade, Health, and the Environment

By

Douglas Michael Bushey

A dissertation submitted in partial satisfaction of the

requirements for the degree of

Doctor of Philosophy

in

Energy and Resources

in the

Graduate Division

of the

University of California, Berkeley

Committee in Charge:

Professor David Winickoff, Chair

Professor Holly Doremus

Professor Ann Keller

Professor Richard Norgaard

Professor Kate O’Neill

Fall 2013

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Abstract

Building an International Administrative Law of Expertise:

Law and Science in the International Regulation of Trade, Health, and the Environment

by

Douglas Michael Bushey

Doctor of Philosophy in Energy and Resources

University of California, Berkeley

Professor David Winickoff, Chair

International agreements on issues related to human health and the environment often

enlist notions of scientific principles or “science-based” decision making in order to constrain the

realm of permissible causal argument within the an area of international law. As a result, parties

to these agreements often wage conflicts over what is or is not “scientific,” and what kinds of

decisions are or are not “based on” science – with important ramifications for the sovereign

regulatory rights of the parties. This dissertation explores this process of contesting and

constituting epistemic authority in international health and environmental law, and makes a

modest attempt to suggest pathways to constructing more broadly legitimate international

practices for validating knowledge claims for taking collective international action.

It does this through a detailed, mixed-method exploration of the practices employed by a

number of critical international institutions to structure who is empowered to know, and to

govern, in this relatively nascent international regulatory sphere. Through a mixture of

negotiation observation, participant interviews, document review, and case law analysis, this

dissertation tracks threads of cognitive and legal authority within and between science advisory

bodies, domestic and international regulatory bodies, and domestic and international courts. By

engaging with actual, as opposed to idealized sources of cognitive and legal authority in

international affairs, it seeks to both illuminate the complexities of the relationship between

science, sovereignty and the rule of law in global regulation, and to point the way to more

broadly accepted practices of knowledge-making and law-making in global regulation.

I have approached this issue in three different ways: an in-depth analysis of the

techniques used by two different international adjudicative bodies for evaluating scientific

claims; a comparative examination of the expertise-related administrative law of the United

States and European Community with an eye to the emergence of international norms; and a

detailed examination of the birth of a global agency and the rise of its authoritative discourse of

risk analysis. All three of these studies take interdisciplinary approaches to addressing these

issues, supplementing legal analysis of key treaties and cases with important insights and

analytical techniques from the field of science and technology studies (STS). Each chapter

addresses distinct but interrelated issues, and makes a separate contribution to our understanding

of the relationship between epistemic and regulatory authority in global governance.

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Introduction

This dissertation explores the relationship between the constitution of legal and epistemic

authority in the global regulation of human health and the environment. It asks the question: how

do countries with different domestic practices for validating knowledge claims for public

decision making come together to take collective action in these areas in ways that are seen as

broadly legitimate to diverse national polities?

The ability to know authoritatively is of heightened importance in the international law of

human health and the environment because polities around the world have come to expect that

responses to these problems be justified in part through a process of scientific exploration and

reason-giving. The epistemic authority of science has become a sine qua non of regulation in

these areas, and scientific expertise has come to play a critical role in framing problems,

designing responses, and evaluating outcomes to health and environmental problems of all

stripes. Indeed, many of these problems, such as ozone deterioration and climate change, are

essentially invisible to the lay citizen and have taken on political salience only through the

framing and mediating language of science. As such, in many of these areas, the range of

politically acceptable causal arguments is constrained in part by the proponent’s ability to frame

his or her arguments as “scientific.”

In spite of the central role that scientific argument has come to play in regulating these

arenas, the operation of scientific expertise in the process of health and environmental regulation

has been far from unproblematic. As scholarship in the field of science and technology studies

(STS) has long demonstrated, the constitution of epistemic authority – particularly in the context

of regulation – is neither an apolitical nor an acontextual process. Knowledge that is fit for one

regulatory purpose may not be fit for another, just as arguments that may be convincing to one

polity may not persuade another. This context-specificity of knowledge claims presents a

particular problem in the international sphere, where no overaching authority exists and countries

with different understandings of how to validate knowledge claims must find ways to act and

reason together, while still justifying their actions to their own citizenry. Given the centrality of

scientific argument to many health and environmental regimes, the solutions to this problem will

have considerable political and legal impact.

This dissertation explores the unique problems that arise when attempting to constitute

epistemic authority in international health and environmental law, and makes a modest attempt to

suggest pathways to constructing more broadly legitimate international practices for validating

knowledge claims for taking collective international action. It does this through a detailed,

mixed-method exploration of the practices employed by a number of critical international

institutions to structure who is empowered to know, and to govern, in this relatively nascent

international regulatory sphere. Through a mixture of negotiation observation, participant

interviews, document review, and case law analysis, this dissertation tracks threads of cognitive

and legal authority within and between science advisory bodies, domestic and international

regulatory bodies, and domestic and international courts. By engaging with actual, as opposed to

idealized sources of cognitive and legal authority in international affairs, it seeks to both

illuminate the complexities of the relationship between science, sovereignty and the rule of law

in global regulation, and to point the way to more broadly accepted practices of knowledge-

making and law-making in global regulation.

The problem of constituting expert and regulatory authority in international health and

environmental law has taken on increased importance in the last half century as three interrelated

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strands of modernity have advanced across the globe. First, the international flow of people,

goods, and risks have rapidly accelerated over this time period, giving rise to new conflicts

between nations that employ different approaches to regulating risks. Much of my work takes

place within the food safety regime complex and explores the ways that trade liberalization – an

attempt to further accelerate international flows of goods – has reshaped the laws and institutions

of international food safety.

Second, the rule of law has expanded into ever-larger spheres of health- and

environment-related social and economic life, exerting authority over issues ranging from

effluent control and water quality, to drug and chemical usage in veterinary and farming

practices. This expansion has taken place on an international scale as well, as nations seek to

enlist the predictability and reason-based legitimacy of law in order to facilitate the flow of

goods and decrease the transaction costs of case-by-case negotiations. The “legalization” of

international conflicts brings issues of regulatory legitimacy to the fore by compelling a larger

role for case-by-case practices of persuasion and reason-giving, particularly when independent

adjudicators are empowered to settle disputes.

Third, as technological innovation has accelerated, governments have increasingly sought

to enlist the authority of science to underwrite their regulatory authority. However, as recent

research in comparative regulation has shown, practices for utilizing scientific knowledge in

domestic regulation have taken different forms in different nations. As this dissertation

demonstrates, this patchwork of domestic knowledge-making approaches has important and as-

yet underappreciated implications for the constitution of scientific authority in international law.

Together, this increased flow of goods, expansion of the rule of law, and rise of

regulatory science has given rise to new international legal structures. These structures seek to

both constitute a specific form of expert authority at the international level and simultaneously

draw from this authority in order to resolve specific disputes. Understanding the social and legal

process of constituting and mobilizing this authority is now central to understanding the

dispensation of epistemic and legal authority in international health and environmental law, as

well as to evaluating its legitimacy.

In the chapters that make up this dissertation, I help to elucidate the processes by which

epistemic and regulatory authority are constituted in international law by describing the

development of a nascent set of institutions and legal and pre-legal norms surrounding the

deployment of knowledge claims in international regimes. I describe the ongoing efforts to

structure practices of knowledge making in international law as giving rise to an emerging global

administrative law of expertise. A global administrative law of expertise consists of the

mechanisms, principles, practices and supporting social understandings that promote the

legitimate validation and utilization of scientific claims in international law. In this dissertation I

work to trace the development of this global administrative law of expertise in a manner that is

institution specific – recognizing the distinct issues that are likely to arise in different legal

regimes – but with an eye to more general phenomena that may transcend the fractured systems

of international law.

I have approached this issue in three different ways: an in-depth analysis of the

techniques used by two different international adjudicative bodies for evaluating scientific

claims; a comparative examination of the expertise-related administrative law of the United

States and European Community with an eye to the emergence of international norms; and a

detailed examination of the birth of a global agency and the rise of its authoritative discourse of

risk analysis. All three of these studies take interdisciplinary approaches to addressing these

3

issues, supplementing legal analysis of key treaties and cases with important insights and

analytical techniques from the field of science and technology studies (STS). Each chapter

addresses distinct but interrelated issues, and makes a separate contribution to our understanding

of the relationship between epistemic and regulatory authority in global governance.

In the first chapter, “Filling in ‘Science’ in International Adjudication: Science and

science-based reasoning in the WTO and ICJ,” I conduct a detailed analysis of the techniques

utilized by the World Trade Organization’s Dispute Settlement Body and the International Court

of Justice to give legal meaning to claims about science. International adjudicators in cases

addressing specific conflicts about health and the environment often serve as de facto arbiters of

who is entitled to know authoritatively in their respective regimes, and the ways in which this

knowledge can be used to justify government actions. Coming to understand the techniques these

adjudicators are using to draw lines bounding what is and is not scientific is thus critical for

understanding the relationship between epistemic and regulatory authority in these areas of

international law.

I examine the techniques utilized by these adjudicators by conducting a detailed analysis

of a number of important health and environmental cases and unearthing the substantive

assumptions and procedural requirements utilized by these courts to empower and disempower

specific knowledge claims. After identifying these techniques, the chapter then asks an additional

question: given the significant power held by international adjudicators to delimit the scientific

from the unscientific in international law, what criteria and techniques might these adjudicators

use in order to garner a broader base of positive legitimacy?

In answer to this question, I argue that there is danger in taking one judge or panel’s own

understanding of what science is and how science works, and universalizing this understanding

onto a variegated landscape of national practices for the use of science in public decision

making. Instead, I propose a three-step framework for adjudicators to use when reasoning about

science.

Under this framework, adjudicators would look first to the text of the relevant agreements

between the parties. Where an agreement espouses particular agreements about legal

epistemologies, or expressly delegates this task to a particular entity, the parties have consented

to this understanding and the adjudicator should “fill in” science according to this agreement.

Second, where the relevant epistemological basis for evaluating scientific claims is ambiguous,

adjudicators should look to widely shared practices in domestic and regional reasoning about

science in regulation. Where national views have converged on specific approaches to science-

in-regulation, adjudicators should fill in science with these convergent understandings, absent

compelling reasons why the specific international context in issue calls for something different

(issues of international convergence in practices for using science in health and environmental

regulation are taken up in more detail in Chapter 2). Third, where the text is ambiguous and no

broadly shared norms exist, international adjudicators should conceptualize their role as

contributing to the progressive development of legal rules by, in part, catalyzing the development

of norms of regulatory science. To this end, I argue that the most important thing that

international adjudicators can do in order to aid in this project of progressive legal development

is to clearly articulate their reasoning when filling in science.

Examining the practices of the WTO and ICJ in this light, I conclude that in contrast to

the WTO, which has grappled openly and extensively with its science-based reasoning, the ICJ

has done a poor job at acting as a catalyst by eliding its science-based reasoning. Finally, I

explore the possibility for cross-regime norm-building and inter-regime learning, but set out a

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number of likely barriers to an extensive project of cross-regime harmonization of science-

validation practices.

Overall, this chapter offers a detailed look at the empirical reality of practices for

validating science in international law, and sets out a project for improving the positive

legitimacy of these practices.

In Chapter 2 I work to further flesh out the framework I develop in Chapter 1. This

chapter, titled “Norms of Regulatory Science: A Role for Comparative Empirical Analysis in

Building a Bottom-Up Approach to Science in International Law?” begins the empirical legwork

that would be necessary to take a comparative norm-building approach to building broadly

legitimate approaches to evaluating scientific claims in international law. It begins by

reestablishing the need for additional resources for international adjudicators to draw from when

interpreting science-based provisions in international law. In order to do this it demonstrates the

ambiguity in science-related treaty provisions, and describes the problems that may arise from

adjudicators resolving this ambiguity in an ad hoc or unguided manner. In order to move beyond

this ad hoc approach, the chapter makes the case that a comparative-convergence approach to

building norms of scientific validation in international law is likely to provide significant

legitimacy benefits.

The chapter grapples with the relationship between regulatory science and sovereign

authority, drawing from comparative STS research that has demonstrated the diverse approaches

that different sovereigns have taken to validating knowledge claims for use in public decision

making. While remaining attentive to the differences between international and domestic law, the

chapter argues that identifying broadly shared “groundnorms” – commonalities between

domestic approaches to validating scientific claims in regulatory law – is likely to provide

international adjudicators with a useful resource to draw from when interpreting scientific

arguments in international conflicts.

Although a broad multi-national study of the expertise-related law of all nations of the

world would be the paragon with respect to advancing this comparative framework, this study

offers a first step in this direction by comparing the administrative rulemaking of two regular

players in international conflicts about health and the environment whose approaches are often

held out as contrasting: the United States and the European Community. This analysis focuses on

the legal rules in these two systems relating to transparency and participation in regulatory

science, and identifies both commonalities and differences between the two. Given the limited

scope of the study and the differences between domestic and international legal systems, the

chapter’s conclusions are necessarily cautious. However, the potential groudnorms identified

through this international comparison my nonetheless help to guide future research, and to begin

to provide a source of broadly legitimate guidance for future international adjudicators faced

with conflicting claims about science and expertise.

Chapter 3 moves beyond the international judiciary to examine the constitution of

epistemic and regulatory authority in a newly empowered global agency: the Codex Alimentarius

Commission (Codex). The Codex is an international standard-setting body for food safety that

was transformed by its 1994 recognition by the World Trade Organization’s Agreement on

Sanitary and Phytosanitary Measures (SPS Agreement). Chapter 3 tells the story of this

transformation from a coproductionist perspective. It demonstrates that instead of simply

identifying in the Codex an existing source of international scientific authority to legitimate the

WTO’s heightened power to review domestic food safety regulations, the SPS negotiations and

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the trading regime had to produce the very science-based agency it had identified as its

foundation.

A substantially similar version of this chapter, titled “Science and Power in Global Food

Regulation: The Rise of the Codex Alimentarius” was published as a co-authored article with

David Winickoff. In this chapter, my field work, including negotiation observation, interviews

with negotiators, science advisors, and secretariat staff, and document research in the United

Nations Food and Agriculture Organization library in Rome allowed us to provide a nuanced

analysis of the impact that the Codex’s newfound regulatory authority had on the knowledge-

making and regulatory practices of this newly-important player in the international trading

regime. We demonstrate that this new authority necessitated newly formalized strategies of

purification and boundary work within the organization, and describe how these practices

emerged and evolved over time.

First, we describe the Codex’s process of building an authoritative framework for risk

analysis that is touted as scientifically rigorous, while simultaneously embodying particular value

choices regarding health, the environment, and the dispensation of regulatory power. We show

that the formalization of this “science based” framework did not predate the WTO and was

instead a direct result of the SPS Agreement’s rationalization and harmonization goals.

Second, we demonstrate the unsettling and subsequent stabilization of the Codex

decision-making procedures. While previously, decisions at the Codex were made by consensus

with disagreeing parties simply abstaining, we illustrate that the post-SPS Codex saw the rise of

voting as a practice for setting controversial standards. After a period of debate about changing

the rulemaking procedure at the Codex, the organization moved to retrench the consensus norm

instead of formally adopting a proposed supermajority requirement. We argue that the overtly

political act of voting served to undermine the appearance of a neutral science-based standard

setting organization, causing the organization to seek to recapture its prior consensus-based

decision making norm, even when parties would in fact have disagreed had it come to a vote. A

similar frolic into voting was not seen in the science advisory bodies to the Codex, due to

stronger norms of purification in those bodies.

Finally, we demonstrate how the influx of regulatory power unsettled Codex expert

committees’ ability to know authoritatively, leading to new procedures to shore up their

epistemic authority. Codex expert committees, responding to concerns that they were dominated

by Western scientists, began to adopt procedures to ensure a degree of geographic representation

on the committees. Whereas overt attempts to “balance” expert committees based on region of

origin might be seen to undermine the scientific authority of such bodies, our research revealed

the emergence of two distinct discourses at the Codex at this time that allowed this practice to

support, rather than undercut the epistemic legitimacy of the expert committees. First, a

discourse of credibility building was used to justify the influx of non-Western scientists, framing

the balance not as correcting potential bias, but simply avoiding the perception of bias. Second, a

discourse of capacity building allowed members to frame the involvement of non-Western

scientists as educational to these scientists themselves, and contributing to an ethos of science-

based regulation back in their home countries.

Altogether, these shifts in Codex procedure demonstrate the simultaneous emergence and

mutual reliance of epistemic and regulatory authority in this new global agency, as the

coproductionist idiom would suggest. Just as the WTO addressed problems of legitimacy in the

legal/economic order by identifying a common trust in scientific rigor and a source of

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international expertise, so too did the Codex address difficult questions regarding the role of

science in regulatory process through the legitimation it received from the WTO.

Each of these chapters push the STS-law literature forward, as described in detail in each

individual chapter. The first two chapters bring important STS insights into a field that has often

underappreciated the context-specificity of scientific authority. These chapters provide

important empirical analysis of the judicial treatment of scientific claims in the US, EC, WTO

DSB, and ICJ that help to elucidate the particular dynamics involved with constituting scientific

authority in these bodies. More importantly, these chapters seek to reframe the relationship

between sovereignty and scientific authority by providing a framework that fully appreciates the

polity-specific nature of knowledge-validation processes. This work contributes to the limited

body of STS work that addresses the problem of constituting expert authority in international

organizations. It does so by focusing on adjudicators and the role that they can play in

identifying and codifying widely shared understandings about the validity of scientific claims. In

the context of the WTO, this work helps to develop a standard of review for the DSB that is

deferential to domestic regulatory choices, but also capable of identifying opportunistic

regulation obscured by purportedly scientific justification.

The final chapter provides an important case study of the coproduction phenomenon,

conducting a detailed tracing of the simultaneous emergence of particular understandings of

science and social ordering. Although coproduction processes will be institution-specific, this

chapter demonstrated a number of distinct processes that emerged by virtue of the Codex’s role

as an international, as opposed to domestic regulatory body, thus helping to advance the

emerging field of global administrative law as well.

Taken together, this dissertation provides an empirically informed and politically

grounded understanding of the role of expertise in international law. It emphasizes the context-

specificity of practices for validating knowledge claims, and draws out some of the unique

phenomena that arise in particular international forums. Across all three chapters, it illustrates

that when a given institution is legally empowered with the authority to determine what is and is

not scientific in international health and environmental law, that institution will develop its own

particular knowledge politics and attendant legitimacy challenges. The nature of these internal

politics and external challenges vary across institutions. The fact that this dissertation examines

both adjudicative bodies and an international “agency” allows for some limited comparison

across these two types of bodies (although the limited number of institutions studied should lead

to caution about any attempts to generalize there from).

In the Codex, the institution’s newfound power led to pressures to purify or attempt to

scientize its decision making, and a simultaneous pressure to render decision making more

broadly representative of perspectives from its diverse members. The institution responded to the

pressure for scientization by attempting to standardize the institution’s decision making

procedures through formalizing a framework for risk analysis. This framework served to limit

the place for case-by-case politics in the standard-setting process. However, the overarching

technocratic framework it imposed carried with it its own politics and rules of participation,

leading to challenges to the institution’s legitimacy as a representative body. In order to address

these challenges to its representative legitimacy, the organization enlisted narratives of

credibility building and capacity building in order to allow for broader participation in its

science-based regulatory process.

By contrast, the WTO DSB lacks the institutional flexibility of the Codex. It cannot

renegotiate decision making procedures or actively enlist the participation of underrepresented

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nations to shore up the legitimacy of its knowledge-making practices. The DSB is constrained by

its requirement to settle the dispute before it, with the arguments (scientific and otherwise)

presented to it. Nevertheless, the DSB has also faced pressures to render decisions that are both

scientifically sound in the eyes of members, while simultaneously not overreaching by

universalizing a single monolithic view of science. The DSB has responded to these pressures by

enlisting postures of deference, as opposed to representation. The DSB has looked searchingly at

the evidence presented by parties in order to determine whether it was sufficiently scientific to

serve as the basis for the regulations at issue. However, instead of constructing a broader and

more representative procedure for determining what is and is not scientific, as the Codex has, it

has developed a deferential test for evaluating these claims. The DSB’s “qualified and respected”

test serves many of the same functions as the Codex’s moves to representation and consensus,

while being mindful of its own limited institutional competencies. It conjures up a sense of

scientific rigor because of its insistence on the qualification of the scientists involved, but it seeks

to avoid overreaching by tracing a web of respect out to its outer reaches before determining that

a given source is not acceptable.

Both the Codex and the DSB illustrate institution-specific processes of coproduction in

the international arena. The different rules and procedures developed to delineate science in these

two institutions accompanies the different roles that these institutions play in generating social

order. The Codex, as a representative international body, has developed a more broadly inclusive

and international science. By contrast, the DSB, as an adjudicator of specific disputes has

developed a science that allows it to press on the claims of particular nations, while

simultaneously appearing deferential to the multitude of different perspectives on how to validate

knowledge claims for public decision making. In both of these stories of coproduction, the

institution has produced its science in the shadow of sovereignty. Sovereigns have created these

institutions and assented to be bound by the science-based judgments therein. In order to

maintain this ability to bind member states, these institutions must continue to produce a type of

science that is seen as broadly legitimate across nations. This dissertation shows how these

bodies accomplish this, and suggests mechanisms that may allow them to effectively do so into

the future.

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Chapter 1

Filling in “Science” in International Adjudication: Science and science-based reasoning in

the WTO and ICJ

Is climate change occurring? What will happen if I eat beef that has been fattened with

oestradiol 17ß? Does Thalidomide cause birth defects? We count on our governments to know a

plethora of things in order to act on our behalf. Crucially, however, not every democratically

elected government comes to know things in the same ways. As important research in the field of

science and technology studies (STS) has demonstrated, science for public regulation means

different things in different places.1 The diversity of ways that nations validate knowledge claims

for public decision making gives rise to an underappreciated challenge for international

adjudicators: when nations with diverse ways of grappling with science in decision making agree

that the resolution of disputes will be based on science, how should international adjudicators

separate the scientific from the non-scientific?

International agreements on issues related to human health and the environment often

enlist notions of scientific principles or “science-based” decision making in order to constrain the

types of causal arguments that parties can make within the regime. For example, if a treaty

provides that food import restrictions must be “based on scientific principles,” then food import

restrictions based on religious views or highly questionable science may be suspect under that

treaty.2 As a result, parties often wage conflicts under these agreements over what is or is not

“scientific,” 3

and what kinds of decisions are or are not “based on” science. In agreements with

legalized dispute settlement mechanisms, decisions about what is and is not sufficiently scientific

necessarily fall to dispute settlement panels.4

At first glance the requirement that decisions be based on science might appear to

significantly constrain dispute settlement panels to a narrow range of options, leaving them with

very little discretion to entertain alternative arguments. However, as I describe in Part I, these

requirements are actually highly ambiguous. Due to the differences in the ways that societies

around the world organize procedures for testing and deploying the knowledge claims that they

1 See SHEILA JASANOFF, DESIGNS ON NATURE: SCIENCE AND DEMOCRACY IN EUROPE AND THE UNITED STATES

(2005).

2 For example, India has prohibited the import of bull semen from Canada on the basis of concerns about bovine

spongiform encephalopathy (more commonly known as BSE or mad cow disease). See

G/SPS/GEN/204/Rev.9/Add.2 paras. 376-78. In spite of the sacred status of cows in the Hindu faith, as

scientific evidence has mounted that BSE is not transferrable by semen, it has grown harder and harder for

India to justify its ban under WTO law. See id.

3 Thomas Gieryn has defined the term “boundary work” as "the attribution of selected characteristics to the

institution of science...for the purposes of constructing a social boundary that distinguishes some

intellectual activity as non-science." THOMAS GIERYN, BOUNDARIES OF SCIENCE, 405 (1985)

4 This is clearly the case when the court engages in its own de novo review of the scientific evidence. However, it is

important to note that it is also true when the court takes more deferential postures. Even in these instances,

the court’s position is rooted in some kind of underlying understandings or heuristics about what science is

or how science works. If the court simply reviews procedure of domestic decision-making, it must have

certain procedures that it is looking for that it deems necessary for science-based decision making. If the

court delegates the decision to an international institution (de facto or de jure), it has identified this

institution as one that has a type of legitimacy that allows it to speak for science.

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use for making collective choices,5 it is clear that the constraining effect of “science-based”

reasoning requirements is largely determined by the way that these dispute settlement panels

operationalize these requirements.6

In practice, international adjudicators resolve these ambiguities by “filling in” science:

mobilizing assumptions about what science is or how science works in order to give legal effect

to “science-based” reasoning requirements. This practice of “filling in” involves both the

heuristics that courts deploy when weighing scientific evidence, and the procedural requirements

that courts impose on parties purporting to make scientific claims.

The fact that international adjudicators cannot simply draw from universal practices, but

must instead fill in science in the face of a collection of non-uniform practices employed by

different sovereigns raises the two key questions that this chapter sets out to answer. First, given

this diversity of domestic practices, how can international adjudicatory bodies fill in science in a

way that is most likely to generate broadly accepted outcomes? Second, how have international

adjudicators filled in science in practice, and to what extent have they been attentive to the

challenges posed by the context-specificity of science-for-regulation?

The answers to these questions suggest a reconceptualization of the way that scholars and

practitioners should think about science in international law. If, as argued in Part I, the

legitimacy of science in public decision making is rooted in nation-specific procedures and

practices for validating scientific knowledge, then building legitimate mechanisms for the use of

science in international law should proceed not from deducing ideal procedures from imagined

universal qualities of science, but from a process of convergence and norm building. Such norm

development may help to build toward more consistent and legitimate use of science in

international law in a way that takes into account the diversity of domestic practices and thus

avoids the risk of inappropriately universalizing one nation’s (or one judge’s) view of science

onto a variegated landscape of national practices for the use of science in public decision

making.

In light of this politically grounded view of science-based regulation, Part I.C lays out a

three-step framework for international adjudicators to use when reasoning about science. This

framework takes seriously the diversity of domestic practices for validating scientific claims by

acknowledging the ambiguity in terms like “science based” regulation and suggesting a

structured approach for addressing this ambiguity. Instead of filling in science with the

individual judge’s ad hoc view of how scientific claims should be validated, this framework

seeks to bolster the legitimacy of these decisions by harnessing the legitimating forces of

consent, convergence, and catalysis. First, it suggests that where nations have consented to a

particular regulatory epistemology through treaty text or other subsequent legally binding

agreement, adjudicators should give effect to that agreement. Second, where widely shared

domestic practices have emerged through convergence, international adjudicators should draw

from those practices unless there is a compelling reason why the international context requires a

different result. Third, where there is no express agreement and no widely shared practice,

5 See SHEILA JASANOFF, DESIGNS ON NATURE: SCIENCE AND DEMOCRACY IN EUROPE AND THE UNITED STATES

(2005).

6 In other words, because methods for dealing with claims about science vary significantly from country to country,

the requirement that decisions be based on science is actually highly ambiguous. The way that the court

resolves this ambiguity is dependent on the attributes that the court ascribes to science.

10

adjudicators should seek to settle disputes in such a way as to catalyze further reasoned debate

and discussion about appropriate practices for validating scientific claims in international law.

After developing this framework, Part II conducts a fine-grained analysis of the science-

related reasoning of the WTO DSB and the ICJ with the purpose of both identifying the

assumptions and procedures that these bodies have used to fill in science, and exploring the

extent to which these bodies have acted in accordance with the three-part framework. It is

important to understand what these bodies are actually doing to fill in science in highly technical

disputes. These practices have important impacts on litigants who are or may be considering

bringing a dispute before these bodies, as well as on the legitimacy of these adjudicatory bodies

in settling science-based disputes.7

After identifying the specific substantive assumptions and procedural requirements that

these adjudicatory bodies have used to fill in science in their disputes, Part III examines and

explains the differences between the approaches of these two bodies and argues that these

adjudicatory bodies can increase the legitimacy of their decisions by positioning themselves in

the progressive development of international norms of regulatory science. In order to serve this

role, it is critical that international adjudicators clearly explain the reasoning of their science-

related conclusions, so as to allow for meaningful analysis and critique of the techniques that

these adjudicators have used to evaluate scientific claims. By so doing, these adjudicators can

serve as focal points for debate among academics, politicians, and future litigants, aiding in the

progressive development of international law in this area. My analysis in this area attempts to

remain neutral on espousing any particular substantive assumptions or procedural requirements

about science, and focuses instead on the behavior of courts as catalysts of norms – facilitating

and enriching international dialogue about scientific reasoning. It finds that while the WTO has

generally done an excellent job in this area by clearly articulating its reasoning and progressively

building a jurisprudence of science-based dispute resolution, the ICJ has largely failed to serve as

a catalyst of norm development and a source of useful law.

I. SCIENCE IN PUBLIC DECISION MAKING: CIVIC EPISTEMOLOGIES AND

INTERNATIONAL LAW

The rapid pace of scientific and technological advance since the industrial revolution has

driven extraordinary advances in standards of living and sizeable economic growth.8 Slower to

develop, but now nearly as commonplace is the sentiment that these technological advances have

7 See, e.g., Pulp Mills on the River Uruguay (Arg. v. Uru.), ¶28 (Apr. 20, 2010) (dissenting opinion of judges Al-

Khasawneh and Simma) (lamenting that the Court missed “a golden opportunity to demonstrate to the

international community its ability, and preparedness, to approach scientifically complex disputes in a

state-of-the-art manner”).

8 Of course, the costs and benefits of these advances have not been evenly distributed. Just as wealth has

concentrated in parts of the world and driven resource extraction and environmental damage in others, see,

e.g., U. Thara Srinivasan et. al., The Debt of Nations and the Distribution of Ecological Impacts from

Human Activities, 105 PROC. NAT’L ACAD. SCI. U.S. 1768 (2008), so too has the globalization of science

created centers of science, where data from around the world is collected, processed, and made into

knowledge. See BRUNO LATOUR, SCIENCE IN ACTION, 215-58 (1987) (describing “centers of calculation”

where accumulated knowledge accumulates and is rendered “combinable” with other accumulated

knowledge), See also Bruno Latour, Drawing Things Together, in REPRESENTATION IN SCIENTIFIC

PRACTICE, 19, 59 (Michael Lynch & Steve Woolgar eds. 1990) (further discussing centers of calculation).

11

also produced significant risks.9 Substances like asbestos, thalidomide, and DDT persist in the

public consciousness not as life-improving technological breakthroughs but as emblems of

scientific progress gone awry. Similarly our lexicon has swelled with metonyms for the same

phenomenon, often without requiring further explanation: Love Canal, Bhopal, Chernobyl (now

Fukushima?), Valdez (now Deepwater Horizon?).

As public awareness and concern has grown about the safety of food, drugs, consumer

goods, and the environment, citizens have come to expect an increased governmental role in

understanding, managing, and distributing these risks.10

Governments across the globe have

responded to these demands by generating a host of laws, regulations and institutions designed to

address these risks. Given the significant benefits that have flowed from scientific and

technological advances, the solutions put forth from this expansion of social regulation have not

necessarily taken the form of broad and potentially economically disastrous bans on potentially

harmful substances or activities.11

As a result, these new agencies were tasked with undertaking

ever more predictive analyses of the risks and benefits of regulation in order to set these

standards and justify them to the onlooking public.12

Given the significant economic and

environmental impact of these regulations, this practice of standard setting quickly became a site

of fierce conflict.

In order to make these governance decisions and justify them before their polities (and in

some cases judiciaries), lawmakers and regulatory agencies have consistently sought to draw

upon the legitimacy and perceived neutrality of science. In the face of high-stakes decisions and

9 See ULRICH BECK, THE RISK SOCIETY: TOWARDS A NEW MODERNITY (1992); ULRICH BECK, WORLD RISK

SOCIETY (1999).

10 See Beck, supra note 26 (Risk Society) at 19-50. The rise of the environmental movement in the last half century

is illustrative of these new demands on government. The relatively newer environmental justice movement

has arguably taken on board the permanence of some of the risks attendant to modern technologies and has

focused less on the removal of risks and more on the distribution of risks See e.g., Sheila Foster, Justice

from the Ground Up: Distributive Inequities, Grassroots Resistance, and the Transformative Politics of the

Environmental Justice Movement, 86 CAL. L. REV. 775 (1998); Rachel Morello-Frosch et. al.,

Environmental Justice and Southern California’s “Riskscape”: The Distribution of Air Toxics Exposure

and Health Risks among Diverse Communities, 36 URB. AFF. REV. 4 (2001).

11 Many laws that did articulate a zero risk or zero pollution standard quickly revealed that the costs associated with

meeting such a goal would not be politically palatable. For example, in the United States the “Delaney

Clause” amendment to the Food Drug and Cosmetics Act of 1938 barred Food and Drug Administration

approval of food additives or food colorings that are “found to induce cancer when ingested by man or

animal.” 21 U.S.C. § 348(c)(3)(A). As more and more substances have been shown to cause cancer when

laboratory animals are exposed to very large doses, and technologies have advanced to be able to detect

very small amounts of a substance, the world of substances that would be banned by a literal reading of the

Delaney Clause swelled. Frank Cross, The Consequences of Consensus: Dangerous Compromises of the

Food Quality Protection Act, 75 WASH. U. L. Q. 1155 (1997). As a result, Congress passed the Food

Quality Protection Act in 1996, removing pesticide residues on food from the reach of the Clause. See 21

U.S.C. § 346a(b)(2)(A) (1997). See also Charles Blank, The Delaney Clause: Technical Naivete and

Scientific Advocacy in the Formulation of Public Health Policies, 62 CAL. L. REV. 1084 (1974); Margaret

Gilhooley, Plain Meaning, Absurd Results and the Legislative Purpose: The Interpretation of the Delaney

Clause, 40 ADMIN. L. REV. 267 (1988). Similarly, the 1972 Clean Water Act established the goal of zero

discharge of pollutants into the nation’s waterways by 1985. 33 U.S.C. § 1251(a)(1). Not only has this goal

not been attained, but it is clear that an EPA rulemaking attempting to strictly achieve this goal, even 25

years later, would be dead on arrival.

12 See SHEILA JASANOFF, THE FIFTH BRANCH: SCIENCE ADVISERS AS POLICYMAKERS, 3 (1990).

12

complex technoscientific phenomena, however, making “science based” decisions has not

proven as easy as drawing facts from a universally accepted compendium of scientific

knowledge.13

Instead, conflicts about the veracity of scientific claims have increasingly gone

hand-in-hand with political and regulatory decisions.14

The “knowledge politics” attendant to

science-related decision making has become a central feature of the modern regulatory state.15

This regulatory knowledge politics takes on additional complexity in the international

sphere, where diverse nations must act and reason together. Scholars in the fields of science and

technology studies (STS) and international law have begun to give attention to this phenomenon,

improving our understanding of the relationship between epistemic and regulatory authority, as

described in the next two subsections. However, as I argue in the final subsection of this Part,

these two bodies of literature have yet to fully appreciate and address the difficult questions at

the border of sovereignty and epistemic authority in international law.

A. Civic Epistemologies, Boundary Work, and the Legitimacy of Domestic Risk

Governance

As the epistemic aspect of public decision making has moved to the foreground in

environmental and health regulation, an interdisciplinary group of science and technology studies

(STS) scholars has emerged to explore the processes by which facts are made in scientific,

political, and legal discourse.16

Drawing from the sociology and philosophy of science, and

generally applying highly empirical methods,17

this body of scholars has made significant

progress in coming to understand why specific actors come to accept certain assertions as true,

and how the politics of knowledge-making interacts with broader regulatory politics. Developing

legal theories about science-in-law without attention to how science is actually utilized in

practice risks importing the author’s (or judge’s) own, often idealized, views of science. In light

of this, before examining the substantive assumptions and procedural requirements that the WTO

and ICJ have used to “fill in” science, it is useful to introduce a number of central insights and

13

See SHEILA JASANOFF, SCIENCE AT THE BAR, 209 (1995) (“[T]extbook science – the body of knowledge that is

already in the public domain, having passed through science’s critical filters – is rarely enough to satisfy

the law’s need for contextualized knowledge.”).

14See, e.g. Am. Petroleum Inst. v. Costle, 665 F.2d 1167, 1185 (D.C. Cir. 1981) (examining whether there was

scientific support for the finding that adverse health effects occur at ozone levels of 0.15 to 0.25 parts per

million); Brief of Petitioners at 6, 19-29, Coalition for Responsible Regulation v. EPA, No. 09-1322 (D.C.

Cir. Oct. 17, 2011) (challenging the science underlying the EPA’s finding that climate change “may

reasonably be anticipated to endanger public health or welfare”).

15 See generally YARON EZRAHI, THE DESCENT OF ICHARUS: SCIENCE AND THE TRANSFORMATION OF

CONTEMPORARY DEMOCRACY, Harvard Univ. Press (1990) at 281 (“'[T]ruth,' 'facts,' and 'knowledge' are

appreciated by democratic political performers mostly for their rhetorical value in strategies and in rituals

of legitimation than for their instrumental value in improving substantive performance.").

16 See generally THE SCIENCE STUDIES READER (Mario Biagioli, ed., 1999); THE HANDBOOK OF SCIENCE AND

TECHNOLOGY STUDIES (Edward Hackett et. al., eds., 3d ed. 2008). The STS literature is not limited to

studies of science in policy making. Although the literature has a multitude of theoretical roots, many of its

most prominent early works focus on the practices of scientists themselves, with little attention to the

interplay with government. See, e.g. ROBERT MERTON, THE NORMATIVE STRUCTURE OF SCIENCE (1942);

BRUNO LATOUR AND STEVE WOOLGAR, LABORATORY LIFE: THE SOCIAL CONSTRUCTION OF SCIENTIFIC

FACTS (1979); Latour, supra note 8.

17 That is, studying actual social actors in the process of knowledge production and validation.

13

terms from the STS literature: the contingency of knowledge, boundary work, and civic

epistemologies. A working understanding of these central STS concepts will help to better

identify and evaluate the often unexamined and unnoticed reasoning that adjudicators undertake

in order to construct the science upon which they base their decisions.18

Contingency of knowledge. One of the central achievements of the STS literature has

been to demonstrate the contingency of scientific knowledge. The contingency of knowledge is

the rather uncontroversial proposition that the set of things that a given individual believes to be

true at a given time has been shaped by social and historical forces; that is, their status as true is

contingent not just upon the physical world itself, but upon the social processes through which

individuals come to regard claims as true. Science is often imagined to remove this contingency

from knowledge. However, scholars in STS have consistently demonstrated that scientific facts

operate with a degree of contingency as well. This insight, most famously advanced by

philosopher of science Thomas Kuhn, highlights that social and historical forces shape ways that

we understand the physical world.19

This insight is highly relevant to understanding public

decision making in science-related fields because laws and regulations are based not upon

absolute truths about the material world, but on what lawmakers and regulators believe to be true

at the time of regulation. As such, attention to the processes by which claims become understood

to be true in specific communities is important to understanding lawmaking and regulation in

different times and places.

STS researches studying social practices in laboratories,20

field research sites,21

science

advisory bodies,22

courtrooms,23

public health controversies,24

international institutions,25

and

18

See ORAN PEREZ, ECOLOGICAL SENSITIVITY AND GLOBAL LEGAL PLURALISM: RETHINKING THE TRADE AND

ENVIRONMENT CONFLICT, 127 (2004) (noting that judicial deference to science is actually deference to

science “in its legally reconstructed image”).

19 See THOMAS KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (1962).

20 See, e.g. Latour and Woolgar, supra note 16 at 105 (tracing the production of a single scientific fact as it is “freed

from the circumstances of its production” and becomes widely accepted scientific knowledge); Latour,

supra note 8. See also STEVEN SHAPIN AND SIMON SCHAFFER, LEVIATHAN AND THE AIR PUMP: HOBBS,

BOYLE, AND THE EXPERIMENTAL LIFE, 55-65 (1985) (describing the conventions of replication and

witnessing in the early experimental method).

21 See, e.g. Michel Callon, Some Elements of a Sociology of Translation: Domestication of the Scallops and the

Fishermen of St. Brieuc Bay, in POWER, ACTION AND BELIEF: A NEW SOCIOLOGY OF KNOWLEDGE? (John

Law ed. 1986) (describing the network of human and non-human actors that a scientist must manipulate in

order to render him or herself an authoritative “obligatory passage point” for the production of new

knowledge); Bruno Latour, PANDORA'S HOPE: ESSAYS ON THE REALITY OF SCIENCE STUDIES, 24-79 (1999)

(describing the procedures used by forest researchers to “reduce” physically gathered artifacts to numerical

representations, and then to “amplify” these representations to make them representative of a larger set of

phenomena and thereby render them more universal).

22 See, e.g., Jasanoff, supra note 12; STEPHEN HILGARTNER, SCIENCE ON STAGE: EXPERT ADVICE AS PUBLIC DRAMA

(2000).

23 See, e.g., SHEILA JASANOFF, SCIENCE AT THE BAR (1995).

24 See, e.g., Brian Wynne, Misunderstood Misunderstandings: Social Identities and Public Uptake of Science, in

MISUNDERSTANDING SCIENCE? PUBLIC RECONSTRUCTION OF SCIENCE AND TECHNOLOGY, 19 (Alan Irwin

and Brian Wynne, eds. 1996) (describing interactions between sheep farmers and radiation experts in the

production of knowledge about the impacts of the fallout from Chernobyl); Steven Epstein, The

Construction of Lay Expertise: AIDS Activism and the Forging of Credibility in the Reform of Clinical

14

other sites have shed significant light on the reasons why individuals come to treat particular

factual claims as true, and the techniques used by individuals and institutions in order to position

themselves as providers of authoritative knowledge. Critically, these scholars have demonstrated

that science and scientific credibility are not artifacts or phenomena that simply exist in the

world without the work of specific social actors. Facts must be produced by specific individuals,

observers and skeptics must be persuaded by the practices of these individuals, and trust and

credibility must be maintained against an onslaught of skepticism and doubt. In short, facts have

a history – a process by which they become understood to be true.26

Research in this area has focused on the behavior of scientists in the process of research,

highlighting the ways that practices such as structured observation, repetition, and peer review

may operate to make certain knowledge claims so widely accepted that they are taken for granted

as true and no longer meaningfully challenged.27

But of course, just as facts are built up by social

practices over time, so too may they become subject to attack and succumb to a breakdown of

the consensus that once supported them. This process by which facts are made and unmade over

time is particularly relevant in the world of high-stakes, politically-relevant factual

disagreements where purportedly scientific claims are often subject to relentless attack.28

Conflicts about the truth of particular claims are often framed as battles surrounding

whether or not a certain claim or process is or is not scientific. As a result, the processes by

which some claims come to be labeled as scientific while others are dismissed as non-scientific

have been of central importance to STS scholars.

“Boundary work” and demarking science from non-science. There has been broad

interest within the STS literature in a subject that is usually referred to as the boundary problem.

This term refers to the social practices that contribute to creation of a boundary between certain

claims, which are labeled as scientific, and other claims which are not. In his important work on

the subject of marking a boundary between science and non-science, Thomas Gieryn explores a

number of canonical solutions to this boundary problem.29

Most of these solutions are

essentialist, in that they maintain that a boundary between science and non-science exists

Trials, 408 SCI. TECH. & HUM. VALUES 408 (1995) (describing the role of AIDS treatment activists in

changing the epistemic practices of biomedical research).

25 See, e.g. Michael Goldman, The Birth of a Discipline: Producing Authoritative Green Knowledge, World Bank

Style, 2 ETHNOGRAPHY 191 (2001); Clark Miller, Hybrid Management: Boundary Organizations, Science

Policy, and Environmental Governance in the Climate Regime, 26 SCI. TECH. & HUM. VALUES 478 (2001).

26 The fact that the material world is not strictly determinative of our understandings of it is not to suggest that a real

physical world does not exist, or that the content of that world is determined by our understanding of it.

Airplanes would not fall from the sky if people stopped believing in the relevant laws of physics, as

overstated critiques of STS approaches would seem to imply.

27 Bruno Latour refers to this as “black boxing” facts; there comes a point where it is no longer necessary to open the

box each time a claim is asserted. Latour, supra note 8 at 2-3. See also Callon, supra note 21; Latour, supra

note 21. A somewhat similar, but more familiar formulation would be to suggest that such facts are a part

of the current paradigm of a science at a given time. See THOMAS KUHN, THE STRUCTURE OF SCIENTIFIC

REVOLUTIONS (1962).

28 See, e.g., DAVID COLLINGRIDGE AND COLIN REEVE, SCIENCE SPEAKS TO POWER, St. Martin’s Press, New York

(1986).

29 See Thomas Gieryn, Boundaries of Science, in HANDBOOK OF SCIENCE AND TECHNOLOGY STUDIES, 393 (Jasanoff

et. al. eds. 1995).

15

objectively and can be demarcated by some universal set of criteria. Gieryn gives the examples

of Karl Popper’s falsifiability,30

Robert Merton’s social norms of science,31

and Thomas Kuhn’s

paradigmatic consensus.32

All of these widely cited theories supply criteria from philosophy,

sociology, and history respectively that can be used to argue that some claims are scientific,

while others are unscientific, pseudoscientific, or pre-scientific.

For Gieryn, however, these theories are unsatisfactory for describing the actual practice

of scientists and consumers of science. Gieryn argues that science is not defined by a distinctive

"methodology, institution, history or [consequence of science]”33

Instead, defining the

boundaries of science is effectively an empirical question. In place of deducing universal

objective criteria, Gieryn argues that to understand how the boundary is actually drawn in real

situations and conflicts attention must shift to “representations of scientific practice and

knowledge in situations where answers to the question, ‘What is science?’ move from tacit

assumption to explicit articulation.”34

The task of demarcating science from non-science is thus

best achieved by studying episodes of what Gieryn calls “boundary work”: “the attribution of

selected characteristics to the institution of science (i.e. to its practitioners, methods, stock of

knowledge, values and work organization) for the purpose of constructing a social boundary that

distinguishes some intellectual activity as non-science.”35

Episodes of boundary work are best understood as contests about who can claim the

cognitive authority of science. Under this conception, science is “a kind of spatial ‘marker’ for

cognitive authority, empty until its insides get filled and its borders drawn amidst context-bound

negotiations over who and what is ‘scientific.’”36

In short, if our goal is to understand how

30

Popper’s familiar philosophy of science posits falsifiability as the primary criterion for demarcating scientific

inquiry. Popper’s philosophy addresses the problem of induction by which evidence may amass in favor of

a given claim, but no matter how many observations accrue, the next one could always in principle yield a

refutation. For Popper, science advances toward truth, but never achieves certainty. What is required for the

advancement of science is bold conjecture that can then be subject to critique and disproof. Claims that are

not “falsifiable,” as defined by Popper, are relegated to the realm of non-science. See, e.g. KARL POPPER,

THE LOGIC OF SCIENTIFIC DISCOVERY, 40 (1959). This position has been criticized on the basis that

falsification is not as straightforward and easily defined or accomplished as Popper claims, particularly

with regard to the reproducibility of falsifying empirical evidence. See HARRY COLLINS, CHANGING

ORDER: REPLICATION AND INDUCTION IN SCIENTIFIC PRACTICE, 2 (1985).

31 Robert Merton famously posited four social norms of scientific inquiry: universalism, communism,

disinterestedness, and organized skepticism. Robert Merton, The Normative Structure of Science, in THE

SOCIOLOGY OF SCIENCE: THEORETICAL AND EMPIRICAL INVESTIGATIONS (1973). For Merton, knowledge

produced by individuals who followed these social norms led to the extension of certified knowledge, and

served to excise matters of political influence, and unjustified beliefs from the realm of the scientific.

32 See Gieryn, supra note 29. In Thomas Kuhn’s Structure of Scientific Revolutions, Kuhn distinguishes “mature”

and “normal” science from pre-science and “sort of” science by describing the existence of paradigms in

normal science – widely agreed background assumptions about the way the world works and the

appropriate methods for framing and suggesting new problems and methods for arriving at solutions.

THOMAS KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (1962).

33 Gieryn, supra note 29 at 405.

34 Id.

35 Id. (quoting Thomas Gieryn, Boundary-Work and the Demarcation of Science from Non-Science: Strains and

Interests in Professional Ideologies of Scientists, 48 AM. SOC. REV. 781 (1983)).

36 Id.

16

particular claims come to be understood as scientific, then is it important to observe actual social

actors negotiating and posturing to claim this authority.37

If science is understood as an empirically observable social category, filled in by episodes

of boundary work, then it becomes important to probe what types of boundary drawing strategies

are successful in different contexts. Given the high stakes of much legal and regulatory decision

making in areas of health and the environment, this area has seen frequent and high-profile

debates about the scientific status of factual claims.38

It has also received significant attention

from STS scholars.

Regulatory science and civic epistemologies. Scientists are not, of course, the only social

actors that engage in boundary work. Both regulators and judges often rely on boundary drawing

techniques in order to bolster the legitimacy of their regulations or decisions. Science in these

settings, however, takes on somewhat of a different character.

“Regulatory science” – science conducted or evaluated for the purpose of taking or not

taking some governmental action, is characterized by a number of differences from “pure”

research science.39

First, regulators need to make policy decisions in the short term in situations

where simply waiting for more clarity and consensus to develop may not be practical. Second,

regulatory decision making often involves deeply intertwined value judgments and factual

determinations that make boundary drawing exercises particularly difficult. Third, the economic

interests at stake are often great, leading to particularly fierce challenges to any factual claims

that could harm these interests.40

Fourth, and most crucially, regulatory decisions bind an

onlooking polity and must consistently demonstrate their legitimacy in the eyes of this polity.

Regardless of these challenges to making regulatory decisions in the face of contested

factual claims, regulators rely heavily on the authority of science to legitimate their decisions.41

Indeed, this dependence on scientific legitimacy to undergird public decision making can be

understood as one of the central features of the modern regulatory state.42

37

It is important to stress again that this technique is designed to understand how particular claims and practices

come to be viewed as scientific and authoritative. It is agnostic on the actual correspondence of these

claims to an objective reality. It may be that claims demarcated by the above-described essentialist theories

are the most useful for certain purposes, or because these theories have been widely accepted and

internalized, that social actors actually behave in a way that grants scientific authority only to claims that

fulfill Popper’s, Merton’s, or Kuhn’s demarcational criteria. This empirical question, however, requires

empirical inquiry to evaluate.

38 Consider, e.g., health debates about cigarette smoke, pesticide use, and the effects of breathing the air in lower

Manhattan after the September 11, 2001 terrorist attacks. Consider also environmental debates about

climate change, the stratospheric ozone layer, and hydraulic fracturing.

39 Most of these differences are differences of degree, not of kind.

40 “Inconvenient” truth claims, as it were. See AN INCONVENIENT TRUTH (Lawrence Bender Productions 2006). In

particularly high-stakes situations, it is unclear whether even the most esteemed group of experts can

muster the authority to settle a regulatory science dispute on scientific grounds. See Collingridge and

Reeve, supra note 28; Jasanoff, supra note 12 at 234.

41 Some have argued inappropriately so. See, e.g. Wendy Wagner, The Science Charade in Toxic Risk Regulation,

95 COLUM. L. REV. 1613 (1995) (arguing that regulatory agencies often mask policy decisions as outcomes

of a scientific analysis).

42 See Ezrahi, supra note 15.

17

However, it is crucial to realize that the way that governments make and deploy

knowledge claims in order to justify their decisions to their publics is not uniform across the

globe. STS scholarship attentive to practices of boundary drawing in regulatory settings has

documented a diversity of institutionalized practices by which members of different societies test

and deploy the knowledge claims that are used as a basis for making collective choices.43

In her

pathbreaking work on the subject, Sheila Jasanoff conducted a comparative study of the science

and politics of biotechnology regulation in the United States, Britain, Germany, and the EU.44

This work’s most important contribution was a textured account of the different ways that

democratic polities acquire communal knowledge for the purposes of taking collective action.

Terming these different aspects of national political culture “civic epistemologies,” Jasanoff

explores six different dimensions along which these practices differ in different societies: the

dominant participatory styles of public knowledge making, the methods of ensuring

accountability, the practices of public demonstration, the preferred registers of objectivity, the

accepted bases of expertise, and the visibility of expert bodies.45

Jasanoff’s analysis demonstrates

that different nations hold different perspectives on what counts as legitimate knowledge and

how that knowledge should be produced and used in legal and policy contexts.

Crucially, after chronicling these differences, Jasanoff does not condemn them or paint

them as an inappropriate politicization of an acontextual ideal of science. Instead, she recognizes

that attention to these differences in political culture is necessary in order to justify and explain

science-related policy choices to governments’ diverse national polities.46

Jasanoff’s work

illustrates that there is not one single, universal or ideal model for the use of science in public

decision making. Instead, different political and legal systems have spawned different practices

for producing policy- and law-relevant knowledge, alongside polities who have come to expect

these practices and view them as legitimate.47

It follows that practices for legitimating

43

See, e.g., Sheila Jasanoff, Acceptable Evidence in a Pluralistic Society, in ACCEPTABLE EVIDENCE: SCIENCE AND

VALUES IN RISK MANAGEMENT 29 (Mayo and Hollander, eds. 1991) (comparing the role of experts in

public decision making in Britain and the United States); Jasanoff, supra note 1; Clark Miller, Civic

Epistemologies: Constituting Knowledge and Order in Political Communities, 2 SOC. COMPASS 1896

(2008) (exploring how knowledge is made in political communities); Shobita Parthasarathy, Whose

knowledge? What values? The comparative politics of patenting life forms in the United States and Europe,

44 POL’Y SCI 267 (2011) (describing the different “expertise barriers” to participation in the technically

complicated policy domain of life form patenting in the US and Europe).

44 Jasanoff, supra note 1.

45 Id. at 259.

46 For example, Jasanoff elsewhere notes that “[w]ell entrenched habits of skepticism in American politics . . . have

been linked to a recurrent, utopian search for neutral approaches to conflict resolution, framed by objective,

quantitative decisionmaking techniques, such as vulnerability assessment, risk assessment and cost-benefit

analysis.” Sheila Jasanoff, Ordering Knowledge, Ordering Society, in SHEILA JASANOFF (ed.), STATES OF

KNOWLEDGE: THE CO-PRODUCTION OF SCIENCE AND SOCIAL ORDER, 13, 34 (2004).

47 More generally, the fact that different institutions have developed different ways of knowing that in turn help to

constitute the institution is a central insight of the body of work on the “coproduction” of science and social

orders (such as the law). See, e.g., Ezrahi, supra note 15; Sheila Jasanoff, The Idiom of Coproduction, in

SHEILA JASANOFF (ed.), STATES OF KNOWLEDGE: THE CO-PRODUCTION OF SCIENCE AND SOCIAL ORDER, 1

(2004); Charis Thompson, Co-producing CITES and the African Elephant, in SHEILA JASANOFF (ed.),

STATES OF KNOWLEDGE: THE CO-PRODUCTION OF SCIENCE AND SOCIAL ORDER, 67 (2004); David

Winickoff and Douglas Bushey, Science and Power in Global Food Regulation: The Rise of the Codex

Alimentarius, 35 SCI. TECH. & HUM. VALUES 356 (2010).

18

knowledge claims in public decision making cannot simply be cut and pasted across places and

scales without raising potentially significant legitimacy challenges. As I will argue, the context-

specific nature of scientific knowledge legitimation has important implications for international

law. Lawmakers, regulators and scholars who ignore these differences in pursuit of a universal

approach to mobilizing knowledge claims in public decision making risk unwittingly imposing

their own parochial understandings of the process onto political systems that have grown up with

different systems of public justification.48

In order to orient my discussion of the challenges that

the civic epistemology thesis raises for our understanding of science in international law, it is

necessary to first examine the key strands in the existing scholarship on science in international

affairs.

B. Science in International Affairs

As scientific evidence has been asked to play an increasingly central role in international

health and environmental regimes, a body of scholarship has developed to help understand the

role of science in these regimes, and to probe the legitimacy of different techniques for

mobilizing science in international affairs. Attention to the issue of building more legitimate

practices for making and validating knowledge in international affairs has focused largely on

science advisory bodies, negotiating bodies, and standard-setting organizations.49

Scholars

examining these non-adjudicative contexts have looked to questions of process and institutional

design in science advisory bodies,50

the role of scientific advice in intergovernmental negotiation

48

Indeed, it is not uncommon for scholars to ignore these differences and conclude that any difference in science-

based regulation is simply veiled protectionism. See, e.g., THOMAS BERNAUER, GENES, TRADE, AND

REGULATION: THE SEEDS OF CONFLICT IN FOOD BIOTECHNOLOGY, Princeton Univ. Press (2003). These

arguments tend to over-universalize science and simultaneously overestimate its ability to level divergent

moral and political principles. For an excellent criticism of this perspective, see Vern Walker, The Myth of

Science as a ‘Neutral Arbiter’ for Triggering Precautions, 26 B.C. INT’L & COMP. L. REV. 197 (2003). See

also David Winickoff et. al. Adjudicating the GM Food Wars: Science, Risk, and Democracy in World

Trade Law, 30 YALE J. OF INT’L L. 82 (2005); Jacqueline Peel, Risk Regulation under the WTO SPS

Agreement: Science as an International Normative Yardstick? Jean Monnet Working Paper, New York

Univ. (2004). This is not to suggest that veiled protectionism does not exist; it is only to point out that some

differences in regulatory choices reflect legitimate differences between nations with respect to the process

of legitimating scientific claims in public decision-making.

49 See, e.g. Karen Litfin, Ozone Discourses: Science and Politics in Global Environmental Cooperation (1994);

David Jukes, The Role of Science in International Food Standards, 11 FOOD CONTROL 181 (2000); Clark

Miller, Hybrid Management: Boundary Organizations, Science Policy, and Environmental Governance in

the Climate Regime, 26 SCI. TECH. AND HUM. VALUES 478 (2001); Rolf Lidskog & Goran Sundqvist, The

Role of Science in Environmental Regimes: The Case of LRTAP, 8 EURO. J. INT’L RELATIONS 77 (2002);

Clark Miller, Climate Science and the Making of a Global Political Order, in STATES OF KNOWLEDGE: THE

CO-PRODUCTION OF SCIENCE AND SOCIAL ORDER, 46 (Sheila Jasanoff, ed. 2004); Marybeth Long Martello,

Expert Advice and Desertification Policy: Past Experience and Current Challenges, 4 GLO. ENVT’L POLS.

85 (2004); ALEX FARRELL & JILL JAGER, ASSESSMENTS OF REGIONAL AND GLOBAL ENVIRONMENTAL

RISKS: DESIGNING PROCESSES FOR THE EFFECTIVE USE OF SCIENCE IN DECISIONMAKING (eds. 2006);

RONALD MITCHELL ET. AL., GLOBAL ENVIRONMENTAL ASSESSMENTS: INFORMATION AND INFLUENCE

(2006); Ann Keller Credibility and Relevance in Environmental Policy: Measuring Strategies and

Performance among Science Assessment Organizations, 20 J. PUB. ADMIN. RESEARCH & THEORY 357

(2010).

50 See, e.g., Keller, supra note 49; Farrell & Jager, supra note 49; Mitchell et. al., supra note 49; Paul Edwards &

Stephen Schneider, Self-Governance and Peer Review in Science-for-Policy: The Case of the IPCC Second

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processes,51

and the role of expert advice in international standard-setting.52

Clark Miller has

been an important thinker in this area; his work on building authoritative knowledge in

“international knowledge institutions” has been useful in highlighting the power inherent in

global knowledge-making and subjecting it to democratic critique.53

In this work, Miller

explored the normalizing effect of a class of international organizations designed specifically to

produce and validate knowledge in global politics. For Miller, these institutions represent a

“proto-democratic” experiment in structuring global knowledge-making processes in an

inclusive manner so as to garner a broad base of legitimacy from diverse global publics. He

posits that these institutions signal the existence of a struggle to deploy scientific knowledge and

expertise as the basis of a global civic epistemology and argues that we should be attentive to the

manner in which these institutions conduct this important political work.54

While Miller’s work focuses on the role of advisory bodies and other non-adjudicatory

international bodies in building practices for validating knowledge claims in international affairs,

my work focuses on the role that the judiciary may play in helping to build these practices.55

The

existing literature on the use of science in international adjudication has focused largely on the

use of science in decision making, and less on the more fundamental definitional and boundary-

drawing issues that I focus on here. Moreover, the vast majority of the literature in this area has

focused on one particular adjudicatory body: the WTO DSB.

This focus on the WTO DSB is not surprising. The WTO has a strong dispute settlement

system with the authority to settle disputes in areas where free trade values conflict with

domestic regulations designed to protect “human, animal, or plant life or health.”56

Because

issues relating to human, animal and plant life and health are often scientifically complex and

unsettled, the DSB at times finds itself faced with reams of complex technical argument in the

Assessment Report, 219 in CHANGING THE ATMOSPHERE: EXPERT KNOWLEDGE AND ENVIRONMENTAL

GOVERNANCE (Clark Miller & Paul Edwards, eds 2001).

51 See, e.g., PETER HAAS, SAVING THE MEDITERRANEAN: THE POLITICS OF INTERNATIONAL ENVIRONMENTAL

COOPERATION (1990); Litfin, supra note 49; Miller, supra note 49; Lidskog & Sundqvist, supra note 49;

Martello, supra note 49.

52 See, e.g. Jukes, supra note 49; Michael Livermore, Authority and Legitimacy in Global Governance:

Deliberation, Institutional Differentiation, and the Codex Alimentarius, 81 N.Y.U. L. REV. 766 (2006);

Winickoff & Bushey, supra note 47. See also Michael Goldman, Imperial Science, Imperial Nature:

Environmental Knowledge for the World (Bank), 55 in EARTHLY POLITICS: LOCAL AND GLOBAL IN

ENVIRONMENTAL GOVERNANCE (Sheila Jasanoff & Marybeth Long Martello, eds. 2004).

53 See Clark Miller, Democratization, International Knowledge Institutions, and Global Governance, 20

GOVERNANCE 325, 328 (2007) (arguing that these international knowledge institutions contribute to the

epistemic ordering of world affairs by, inter alia, fixing rules for deploying evidence in global policy

debates).

54 Id. at 350.

55 Even though Miller’s work does not reach adjudicatory bodies in international law, it is easy to see within the

framework I have laid out above how the work of international knowledge institutions may feed into

international adjudication. For instance, where treaties delegate epistemic authority to specific international

institutions, such as the Codex Alimentarius Commission, adjudicators may legitimately use the work of

these institutions to fill in science in adjudicatory contexts in step one. Moreover, where international

knowledge institutions reach agreement about certain norms of regulatory science, these norms may diffuse

to domestic legal systems and support the finding of broadly shared norms across domestic systems that

adjudicators may use to fill in science in step two of my framework.

56 See GATT Art. XX(b); Agreement on the Application of Sanitary and Phytosanitary Measures, Art. 2.1.

20

course of settling these disputes. Moreover, the SPS Agreement explicitly reserves a place for

“science” in settling these disputes by requiring members’ regulations to be “based on scientific

principles and . . . not maintained without sufficient scientific evidence.”57

The centrality of science in the agreements themselves and subsequently in a number of

contentious disputes has generated a body of literature debating the appropriate and legitimate

use of science in WTO dispute settlement. At its core, this literature consists of a debate about

the tension between the preservation of member states’ cultural autonomy and domestic

regulatory processes, and the regime’s goal of advancing nondiscrimination by avoiding veiled

protectionism. As it has become clear that a simple reference to “science” in the text would not

by itself strike the needed balance, scholars have proposed more detailed and specific ways to

strike this balance. These scholars generally agree that absolute deference to member regulations

would render the agreement meaningless,58

and that the WTO heavy-handedly leveling domestic

regulatory diversity by imposing its own view of science would result in a crisis of legitimacy for

the organization.59

Where they don’t agree is exactly how to balance in the middle.

David Wirth was among the earliest commentators in this area, expressing concern as

early as 1994 that panels scrutinizing domestic regulatory decisions would act in a heavy-handed

manner, requiring a high degree of correlation between the “scientific support and the regulatory

measure chosen.”60

As a result, Wirth recommended that panels adopt a “highly deferential”

stance toward domestic regulators.61

Wirth is not alone among commentators in his concern that WTO review of domestic

regulations could tak